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District Court 7 June 2013

R v Hua

[2013] NSWDC 115

Fraud & dishonesty
CRIMINAL LAW SENTENCE DEALING WITH THE PROCEEDS OF CRIME

Citation: R v Hua [2013] NSWDC 115
Court: District Court of New South Wales
Date: 7 June 2013
Judge(s): Berman SC DCJ

Background

The offender, a Canadian citizen ordinarily resident in Hong Kong with his de facto wife and two sons, travelled to Australia on a family holiday. Through an acquaintance known to him for many years, he was asked to remain in Sydney temporarily to manage a large sum of cash while that acquaintance travelled overseas.

The offender agreed and, from that point until his arrest on 9 January 2013, he dealt with proceeds of crime totalling more than $3 million. He was to receive $10,000 for approximately one month's involvement. His de facto wife had urged him not to stay, but he proceeded nonetheless.

The offender pleaded guilty at an early stage to one count of dealing with the proceeds of crime under section 400.9(1) of the Commonwealth Criminal Code. The sentencing proceedings followed, with the court receiving evidence from the offender's de facto wife in support of his character.

  • What sentence was appropriate for an offence of dealing with proceeds of crime under s 400.9(1) of the Commonwealth Criminal Code, given the very large sum involved?
  • What weight should be given to the offender's limited and temporary role in the broader money laundering operation?
  • How should an early guilty plea, prior criminal history, and the offender's personal and family circumstances bear on the sentence?
  • What allowance, if any, was appropriate for the fact that the offender would be serving a sentence in a country where English is not his first language and family visits would be difficult?

Decision

The District Court found that the objective seriousness of the offending was significant. The sum involved, over $3 million, was plainly the proceeds of crime, and the broader operation in which the offender played a part was described as "enormous." The court emphasised that sentences for this type of offence must reflect the importance of denying criminals access to the proceeds of their conduct.

At the same time, the court accepted that the offender's role was limited in scope and duration. He stepped in temporarily at another person's request, and that other person was considerably more deeply involved in criminal activity. This reduced, though did not eliminate, his culpability.

The offender received a 25 percent reduction in sentence for his early guilty plea. The court also noted his ongoing relationship with his de facto wife, who returned from Hong Kong to give evidence in his support, as a positive factor. His prior imprisonment in Canada for drug-related offences counted against him, however.

Some weight was given to the hardship of serving a sentence away from family in a country where the offender's first language is not English, though the court was careful to note that this consideration could not be given undue weight, as the offender had chosen to commit the offence in Australia.

Orders Made

  • The offender was sentenced to imprisonment with a head sentence of 18 months, commencing 9 January 2013.
  • A recognisance release order was made, requiring the offender to be released after serving 9 months in custody, with the earliest release date being 8 October 2013.
  • The recognisance release order was set in the sum of $100 and would run for a further 9 months following release.

Key Takeaways

  • Under s 400.9(1) of the Commonwealth Criminal Code, dealing with proceeds of crime is a serious offence warranting imprisonment even where the offender's role is temporary and secondary to a larger operation.
  • A limited, time-bound role carried out at another's request can reduce objective culpability, but does not overcome the need for a custodial sentence where the sum involved is very large.
  • An early guilty plea attracted a 25 percent reduction in the sentence that would otherwise have been imposed.
  • Prior criminal history in another jurisdiction (here, Canadian convictions for drug offences) is a relevant sentencing consideration in New South Wales proceedings.
  • The District Court acknowledged that serving a sentence in a foreign country without regular family contact and in a non-native language is a form of additional hardship, but treated this as a factor of limited weight where the offender had voluntarily committed the offence in that country.

Legislation and Cases Referenced

Legislation:
- Commonwealth Criminal Code, s 400.9(1) (dealing with the proceeds of crime)

Cases:
- No specific cases were identified in the text provided. The judgment notes that both prosecution and defence relied on sentencing precedents, but does not name them.